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State of New Jersey v. Francis Newton

May 16, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
FRANCIS NEWTON, A/K/A KARL A. MCCALLA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. S-1684-93.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 20, 2010

Before Judges Fuentes, Gilroy and Nugent.

Defendant Francis Newton appeals from the August 14, 2009 order that denied his petition for post-conviction relief (PCR). We affirm.

A jury found defendant guilty of first-degree possession of a controlled dangerous substance (CDS) (cocaine) with intent to distribute, N.J.S.A. 2C:35-5a(1) and b(1) (count one); and third-degree possession of a CDS (cocaine), N.J.S.A. 2C:35-10a(1) (count three). On October 24, 1997, the court sentenced defendant to an extended fifty-year term of imprisonment, one-third to be served without parole eligibility, to run consecutive to a sentence defendant was then serving on a New York State conviction. Because the facts leading to defendant's arrest were discussed in our prior opinion, State v. Newton, No. A-1962-97 (App. Div. Feb. 18, 2000), it is unnecessary for us to detail the evidence against defendant for these crimes. However, the following summary will place this appeal in context.

On September 9, 1993, at approximately 1:00 a.m., while defendant was a passenger in a motor vehicle operated by co-defendant Cleveland Fearon in Fort Lee, two members of the Borough's Police Department stopped the motor vehicle after they observed it come off the George Washington Bridge ramp and drive through a yield sign without slowing, cutting off another vehicle. After the police officers received conflicting statements from defendant and co-defendant as to where they were proceeding, the officers requested defendant to exit the motor vehicle. Upon defendant opening the door, one of the police officers observed a plastic bag sticking out of the door panel with a white liquid substance leaking therefrom. The bag was later found to contain cocaine.

On appeal, we affirmed the judgment of conviction and sentence. Id. (slip op. at 13). On June 7, 2000, the Supreme Court denied defendant's petition for certification. 165 N.J. 133 (2000).

On July 9, 2004, while incarcerated in New York State, defendant filed a pro se PCR petition challenging his arrest, contending that the motor vehicle stop was not based on probable cause, but on racial profiling. Because defendant was not available to prosecute his petition as he was then incarcerated in New York, the trial court entered an order on May 5, 2005, dismissing the petition without prejudice to defendant re-filing upon defendant being able to appear in New Jersey. In so doing, the court ruled that defendant had satisfied the five-year period of limitations for filing a petition for PCR pursuant to Rule 3:22-12(a) because the original petition was timely filed. On August 31, 2007, defendant either filed a new petition for PCR or successfully petitioned the court to reinstate his July 2004 petition.*fn1 On October 31, 2007, defendant filed a motion seeking to compel discovery of the personnel files of the officers involved in the motor vehicle stop, and records from various governmental agencies as to any studies or reports of racial profiling by the Fort Lee Police Department. On November 26, 2007, the court entered an order supported by an oral decision of November 9, 2007, denying the motion.

On August 4, 2009, the court conducted argument on defendant's petition for PCR. At the hearing, defendant argued that his sentence was illegal, the trial court having sentenced him to the then-presumptive extended term of fifty years of imprisonment. Defendant contended that he was entitled to a new sentencing hearing, citing State v. Natale, 184 N.J. 458 (2005). Defendant also asserted that the police violated his due process and equal protection rights when they stopped his motor vehicle based on racial profiling. On August 14, 2009, the court entered an order supported by an oral decision of August 4, 2009, denying the petition without conducting an evidentiary hearing.

On appeal, defendant argues:

POINT I.

THE SENTENCE IMPOSED ON THE DEFENDANT IS ILLEGAL AND IN VIOLATION OF THE NEW JERSEY AND ...


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